[Federal Register Volume 72, Number 227 (Tuesday, November 27, 2007)]
[Notices]
[Pages 66218-66219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22983]
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DEPARTMENT OF VETERANS AFFAIRS
VA Adjudications Manual, M21-1; Rescission of Manual M21-1
Provisions Related To Exposure to Herbicides Based on Receipt of the
Vietnam Service Medal
AGENCY: Department of Veterans Affairs.
ACTION: Notice, with request for comments.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to rescind
provisions of its Adjudication Procedures Manual, M21-1 (M21-1) that
were found by the U.S. Court of Appeals for Veterans Claims (CAVC) not
to have been properly rescinded.
DATES: Comments must be received by VA on or before January 28, 2008.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (00REG), Department of Veterans Affairs, 810
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``Rescission of Manual M21-1 Provisions Related to Exposure to
Herbicides Based On Receipt of the Vietnam Service Medal.'' Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1063B, between the
[[Page 66219]]
hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays).
Please call (202) 273-9515 for an appointment. In addition, during the
comment period, comments may be viewed online through the Federal
Docket Management System (FDMS) at www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the
opinion rendered by the CAVC in Haas v. Nicholson, 20 Vet. App. 257
(2006), notice of appeal filed, No. 07-7037 (Oct. 26, 2006). In that
opinion, the CAVC concluded that certain provisions of VA's
Adjudication Procedures Manual M21-1 (M21-1) were substantive
provisions that had not been properly rescinded. Id. at 276-78. We have
appealed Haas, and if we are successful on appeal, this rulemaking will
be withdrawn. However, in the event that we do not prevail on appeal,
we now take action to properly rescind the provisions.
In Haas, the CAVC held that a 1991 M21-1 provision required VA to
concede that Mr. Haas had served in Vietnam, and was presumed to have
been exposed to herbicides during service, because he had received the
Vietnam Service Medal (VSM). Haas, 20 Vet. App. at 270-72 (quoting in
full and discussing M21-1, part III, para. 4.08(k)(1)-(2) (1991)). In
2002, VA had issued a new M21-1 provision that more clearly restated
the 1991 provision, advising that receipt of the VSM could indicate
service on land in Vietnam but, by itself, was not proof of such
service. M21-1, pt. III, para. 4.24(e)(1)-(2), change 88 (Feb. 27,
2002). However, the CAVC held that VA's 2002 revision of the M21-1 was
ineffective because VA had not followed the notice and comment
procedures of the Administrative Procedure Act, 5 U.S.C. Sec. 553(a).
Haas, 270 Vet. App. at 275-78.
As interpreted by the CAVC, the 1991 M21-1 provision requires VA,
in at least some circumstances, to concede service in Vietnam, and thus
herbicide exposure, based merely on the receipt of the VSM, even if all
other evidence indicates that the veteran did not serve on land or on
inland waterways in Vietnam and therefore was exceedingly unlikely to
have been exposed to herbicides as a result of Vietnam service. VA
revised the M21-1 in 2002 because, although receipt of the VSM is an
indication of possible service in Vietnam, it is not definitive or
conclusive evidence of such service. It is inappropriate to include
receipt of the VSM as a sole criterion for the presumption of exposure
to herbicide agents due to service in Vietnam because a veteran may
have received this medal for service in locations other than Vietnam.
(The VSM was awarded to all members of the Armed Forces who served
between July 3, 1965, and March 28, 1973, either: (1) In Vietnam and
contiguous waters and airspace thereover; or (2) in Thailand, Laos, or
Cambodia, or airspace thereover, in direct support of operations in
Vietnam. See Army Reg. 600-8-22, para. 2-13.) The 2002 revision was
intended to clarify VA's view that receipt of the VSM does not require
or permit VA to ignore other evidence indicating that a veteran did not
serve in the Republic of Vietnam. Because the CAVC's interpretation of
the 1991 M21-1 provision does not accord with VA's intent in issuing
that provision, we propose to rescind it.
The M21-1 is an internal manual used to convey guidance to VA
adjudicators. It is not intended to establish substantive rules beyond
those contained in statute and regulation. Neither the 1991 nor the
2002 M21-1 provision, nor any intervening revision to such provisions,
was intended to establish a substantive rule. Further, the 1991
provision was not intended to convey the rule the CAVC imputed to that
provision, treating the VSM as conclusive evidence of service in
Vietnam even if other evidence would support a finding that the veteran
did not serve in Vietnam. However, because the CAVC held that the 1991
M21-1 provision established a substantive rule, and because that rule,
as interpreted by the CAVC, is inconsistent with VA's intent, we are
proposing to rescind the M21-1 provision.
We note as well that we will soon be revising Sec.
3.307(a)(6)(iii) to clarify VA's interpretation of the statutory
authority governing service in Vietnam for purposes of the presumption
of herbicide exposure. In view of the confusion created by the M21-1
provisions in the Haas case, we believe it is preferable to rescind the
M21-1 provisions relating to proof of service in Vietnam, including the
1991 provision at issue in Haas, the 2002 clarifying revision to that
provision, and intervening revisions. This will enable VA to clarify
and ensure that its interpretation of the governing statutory
provisions set forth in its regulation and to minimize the possibility
of a perceived or unintended inconsistency based on VA's internal
manual.
Hence, VA proposes to rescind the following manual provisions
describing service in Vietnam for the purposes of the presumption of
exposure to herbicides: M21-1, pt. III, para. 4.08(k)(1)-(2) (November
8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2), change 23 (October 6,
1993); M21-1, pt. III, para. 4.24(g)(1)-(2), change 41 (July 12, 1995);
M21-1, pt. III, para. 4.24(g)(1)-(2), change 76 (June 1, 1999); M21-1,
pt. III, para. 4.24(e)(1)-(2), change 88 (February 27, 2002).
Approved: November 19, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
[FR Doc. E7-22983 Filed 11-26-07; 8:45 am]
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